Preparing Briefs on Appeal

Category: Blog Posts
Date: Dec 10, 2019 01:49 PM

An important part of the litigation practice is appellate law.  One side can win in the trial court – by a motion to dismiss, on summary judgment, or after a jury trial – only to have the result overturned on appeal.  The court of appeal can send the parties back for an entirely new trial, or in some circumstance, it can decide that the party who lost at trial should actually win the case altogether.  Also, the court of appeal can publish its decision, meaning that the decision will serve as binding law for future cases raising the same issues.  Thus, a published appellate decision can have far-reaching effects for the industry or administrative area involved.  In addition, published appellate decisions often draw media attention, thus further raising the stakes.

In appeals, a party’s written briefing can serve as its sole opportunity to present arguments to the court and influence the court’s decision.  The parties present the appeal to a panel of three justices.  These three individuals decide the matter based only on the paper record from the trial court to determine if the court committed any errors that had a sufficient likelihood of affecting the result.  They do not hear any witness testimony, and they do not accept any additional evidence.  The court of appeal does often hold an oral argument, which is a hearing where the attorneys can argue the appeal in person.  But the hearings tend to be relatively short and are often taken up with the attorneys responding to questions from the justices (and responding to the questions may or may not serves as means for the attorneys to convey their key arguments).

This all shows the importance of effective appellate briefs.  Below are six tips lawyers follow for preparing briefs on appeal.

  1. Be accurate: The appellate brief’s citations to the trial court record, and to applicable legal authorities must be exact.  Accuracy is a requirement for all legal briefs in any court, but for appeals, the stakes can be higher.  If the brief contains an accidental mis-statement, the other side can easily make accusations that the party that presented the brief has tried to mislead the court, create confusion, or lacks credibility.  The appellate court may agree with these contentions and respond accordingly.  Even if it does not, a lawyer’s need to respond to such contentions puts his or her side on the defensive.
  2. Be completeIt is important to make all available arguments that have a sufficient chance of success on appeal.  If the party’s first brief does not make a particular legal argument, the appellate court can consider it waived.  It will be difficult to make the argument for the first time at oral argument before the court of appeal, in subsequent briefing, or to a higher court like the California Supreme Court.
  3. Be clear and guide the court through the decision making sought: This applies both to sentence and paragraph structure and the overall organization of the brief.  Briefs should set forth, in a logical and clear way, the legal structure the court must assess, and how the facts presented in the record fit into that structure.  Briefs will be organized under separate point headings (different items in the table of contents) so as to make it absolutely clear which elements of law apply to which items of evidence.  What about addressing the other side’s arguments?  The brief can group the arguments at the end of the analysis section to which they relate and then restate and refute them in sequence, with typically one argument per paragraph.  This systematic approach constitutes the same approach the court takes preparing its decision, and can provide the court with an analysis it can more or less adopt if it sees fit.
  4.  Apply case themes:  In preparing a brief, attorneys often find that a particular fact, legal principle, or perspective will actually refute many of the other side’s arguments.  The attorneys will develop this into a case theme, something carefully crafted to be repeated in various ways throughout the briefing to keep it at the forefront of the justices’ perceptions.  Often, for consistency, it makes sense for the appeal brief  to include the same case themes as in the trial court.  On appeal, however, lawyers usually add themes that have a more technical dimension, meant to draw on the justices’ interest in accurately applying and developing the law rather than relying on themes based on more general concerns intended to persuade a jury.  Either way, a case theme on appeal can demonstrate to the court of appeal that it can resolve the whole matter by relying on one or two core principles or by making a few key rulings.
  5. Temper your invectiveLawyers sometimes fill their briefs with harsh, accusatory language against the other side or the other side’s lawyers.  They may label arguments made by their opposing counsel “ridiculous,” “bad faith,” “ignorant,” or the like.  But this type of invective is well-known to irritate courts, and even terms like “frivolous” or “bad faith” are thought to have the same effect if they sound perfunctory, and made without any effort actually to single out for the court arguments or conduct by the other side that are particularly outrageous.  Indeed, some appellate attorneys – in appropriate cases – choose to have their briefing not say anything particularly negative about the other side.  Instead, the briefing will simply explain cogently why, under applicable law and the evidence in the record, the other side cannot win the case.  This makes the brief appear more objective and appellate justices may find it easier to rule in favor of the side that takes a more measured tone.
  6. Tell the client’s storyOften both sides experienced the trial court litigation as an emotional saga that took a heavy toll.  It may turn out that the appeal, however, involves only a few more technical issues (e.g., jurisdiction, sufficiency of the evidence on monetary damages, evidentiary rulings on expert witnesses, etc.).  In such cases, the parties may well expect their lawyers nevertheless to write briefs that contain the whole narrative, an emphatic description of why the other side’s conduct was wrongful, and a impassioned explanation of why their side behaved properly and deserves vindication.  It does not help for briefs to include substantial matter irrelevant to issues on appeal.  At the same time, it is common for a brief to offer the court of appeal a context for the decision the court will make.  It is best to find a way to present this context in the appellate briefing, and tell the client’s story succinctly in the process.  This may mean that the brief will include notifications to the court that parts of the discussion serve as this kind of background.  Such matter can have some emotional impact, draw on a sense of fairness, and influence the court.

We will continue to prepare updates on appellate law, and on litigation in general.

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